When Jeanine Pirro, the U.S. Attorney for the District of Columbia, stepped in front of a Fox News camera and told viewers that if they brought a gun into DC she would put them in prison — regardless of whether they were law-abiding gun owners in their home state — the Second Amendment community erupted. The outrage was warranted. But the full picture is more complicated, and understanding it is essential to keeping score accurately on the Trump administration’s Second Amendment record.
What Pirro Actually Said — and What She Meant
Pirro’s exact words were blunt: “You bring a gun into the district, you mark my words, you’re going to jail. I don’t care if you have a license in another district and I don’t care if you’re a law-abiding gun owner somewhere else.”
My read is that she was trying to make a law-and-order point about criminals — not Second Amendment advocates. She was celebrating the dramatic drop in DC’s homicide rate since President Donald Trump took office and signaling that the catch-and-release leniency of the prior administration is over. But she phrased it in a way that swept up every law-abiding gun owner who crosses the DC line, and that is a serious messaging failure.
Here is the legal reality: DC does operate a shall-issue carry permitting regime. It has been shall-issue since the D.C. Circuit struck down DC’s “good reason” may-issue requirement in Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017) — years before the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). Residents and non-residents alike can apply for a DC Concealed Pistol License through the Metropolitan Police Department. So Pirro is technically correct that if you carry in DC without that license, you are breaking the law. But technically correct is not the same as constitutionally sound.
The Problem: Malum Prohibitum vs. Malum in Se
This is where I have been hammering this point at every opportunity, and it is the key to understanding why Trump administration officials keep stumbling on this issue. There are two categories of crimes: malum in se — crimes evil in and of themselves, like murder, robbery, and rape — and malum prohibitum — crimes only because the legislature declared them crimes.
DC’s carry licensing requirement is pure malum prohibitum. There is no moral evil in carrying a lawfully owned firearm without first paying a fee and completing a 16-hour course. In 29 states today, you can carry without any permit at all. The paper itself is the only thing separating a lawful act from a felony in DC — and that paper has no moral weight behind it.
When law-and-order conservatives treat malum prohibitum gun regulations with the same gravity as malum in se crimes, they inadvertently legitimize the entire architecture of unconstitutional gun control. Pirro’s statement did exactly that.
John Adams Had the Right Frame 250 Years Ago
The correct framing has been available since the Boston Massacre trials of 1770. John Adams — defending the British soldiers accused in the massacre — argued that the Bostonians at the customhouse had every right to be armed for defensive purposes, but they had no right to use those arms offensively against soldiers. The distinction between the lawful use of firearms and the misuse of firearms is as old as the republic itself.
That is exactly the phrase Pirro should have used: we support the lawful use of firearms, and we will come down hard on anyone who misuses a firearm to victimize innocent people. Full stop. It is not complicated. It does not require walking any constitutional tightrope. And it would have landed perfectly given that the whole point of her appearance was to tout the administration’s success in getting criminals off the street.
DC’s Registration Requirement Is Also Constitutionally Dubious
There is a second layer here beyond the carry permit issue. DC also requires handgun registration — and that requirement is constitutionally suspect. Then-Judge Brett Kavanaugh said as much in his dissent in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (Heller II): there is no historical tradition of requiring citizens to register their firearms with the government, and a registration mandate raises obvious confiscation concerns. Kavanaugh, J., dissenting, 670 F.3d at 1269. My Second Amendment rights do not evaporate the moment I cross a state line — just as my Fourth Amendment rights, my Fifth Amendment rights, and my First Amendment rights do not evaporate when I drive into California.
Give Credit Where It Is Due — and Then Push for Better
Here is where my frustration has to be honest in both directions. The Trump DOJ’s actions have been strong for the Second Amendment. The U.S. Attorney’s office is not enforcing DC’s 10-round magazine capacity restriction, calling it unconstitutional. DOJ has also filed suit against DC’s semi-automatic rifle ban, arguing it violates District of Columbia v. Heller, 554 U.S. 570 (2008), which it does. Those are real wins. Pirro keynoted an NRA convention and says she owns both long guns and handguns. None of that is nothing.
But actions and messaging both matter. When a senior Trump official tells national television that law-abiding gun owners should leave their guns at home because she will put them in jail, it hands the other side a clip they will play for years. The administration needs to get on the same page — and that means understanding that the Second Amendment community distinguishes sharply between criminals misusing guns and citizens lawfully exercising their rights. Those two things are not the same, and we should never let them be conflated.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.